April 28, 1969

Senator Jack Strong OpinionNo. M-384 Chairman Senate Committee on Re: Constitutlonalltyof S.B. Privilegesand Elections No. 107 relating to the Capitol Building election of presidential Austin, Texas electors and amending sectionsunder the Election Dear Senator Strong: Code.

You have requested our opinion concerning the constltutlonalltsof SenateBill No. 107. The cactlon to the bill provides-that it is An Act

"relatingto the election of presidential electors from congressionaldistricts and from the state at large,and binding all presidential electors to vote according to the pluralitywhich elected them; amending the Texas Election Code as follows: amending section 170a, as amended (Articlell.Ola,Vernon's Texas Election Code); adding section 171a; amending section 172 Article 11.03 ; Article 11.04 amending section 173, as amended

; amending section 114 (Article 11.05);and declaring an emergency.
For brevity's sake,we will summarize the sections.

Section 1: Amends section 170a of Texas Election Code by adding section 3,which states that a politicalparty's presidentialelectors shallbe nominated for each congressional district and as many electors at large as there are Senators and Congressmenat large.

Section 2: Adds section 171a to Texas Election Code which states that the presidentialelector candidateswho receive the plurality of votes in each district or at large shall represent that district or the state at large at the statemeeting of presidential electors.

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Senator Jack Strong, page 2 (M-384)

Section 3: Amends Section 172,Texas Election Code, to state that the canvass of the votes for candidates for President andVice-President and their returns shallbe the same as those for the candidates for district and at large electors of the same party, rather than for the same party generally.

Section 4: Amends Section 173 to includedistrict and at largepresidentialelectors In the certificationof candidates,rather than electors In general.

Section 5: Amends Section 174 of Texas Election Code to state that district and at-large presidential electors shall cast their votes in accordancewith the plurality vote for Presidentand Vice-President In the district and state at large, respectively,which they represent and no other way. Also, this sectionprovides themeans by which a person is appointed to replace an electedpresidential electorwho by death, disabling cause, or disqualification Is unable to attend the meeting of electors. Further, It states that any person 80 appointedmust vote for the same candidateas the person he Is substitutingfor was bound to vote for.

Article II, Section 1,United States Constitution, provides as follows:

"Each State shall appoint, in suchmanner as the Legislature thereofmay direct, a number of Electors, equal to the whole number of Senators and Representatives to which the State may be entitled In the Congress; but no Senator or Representative or person holding an office of trust or profit under the United States, shall be appointed an Elector." Congress Is empowered to determine the time of choosing the electorsand the day on which they are to give their votes,which Is required on the same day throughout the United States. Otherwise, the power and jurisdictionof the state is exclusive,with the exception of the provisionsas to the number of electors and the ineligibilityof certain persons. McPherson v. Blacker, 146U.S. 1 (1892). The Supreme Court stated at page 27 of that opinion:

"TheState also acts lndlvldually through its electoral college,although by reason of
-1898-Senator Jack Strong, page 3 (M-384)

the power of its legislature over the manner of appointment, the vote of its electorsmay be divided. "TheConstitutiondoes not provide that the appointment of electors shall be by popular vote, nor that the electors shallbe voted for upon a general ticket, nor that the majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the',people

act through theirrepresentatives In the legislature,and leaves It to the legislature excluslvela to define the method of effecting the object.
States have considerable freedom in the selection of presidential electors. Qray v. State of Mississlppl, 233 F.Supp. 139 (N.D.Miss. 1964). Congressmay not Interferewith the method designatedby the State Legislature for appointment of presidential electors. Commonwealthex rel Dummlt v. O'Connell, 298 Ky. 44, 181 S.W.2d 691 (1944) Williams v. Rhodes, 89 S Ct 5 (1968). The Constitution leaves it . . to the state legislature exclusively to define the method of effecting the vote of electors. Cf. McPherson ,,v. Blacker, 146U.S. 1, 27 (1892); In re Oreen, 134~b.s'.

Tf~((1890)

. The questionunder considerationwas discussed by the Su reme Court of the United States In Ra 21 (1952). fl The Supreme Courtheld as f;ljIow;;air, 343 U.S.

"Theapplicable constitutionalprovlsfons on their face furnish no definite answer to the query whether a statemay permit a party to require party regularity from its primary candidates for national electors. The presidentialelectors exercise a federal function In balloting for Presidentand Vice-Presidentbut they are not federal officers or agents any more than the state electorwho votes for congressmen. They act by authority of the state that in turn receives Its authority from the Federal Constltution. Neither the language of Art, II, Eli, nor that of the Twelfth Amendment forbids a party to require from candidates in its primary a pledge of political conformitywith the aims of the party. Unless such a requirement is implicit, certainlyneither provision of the
-1899-Senator Jack Strong,page 4 (M-384)

Constitutlonrequires a state political party, affiliatedwith a nationalparty through acceptance of the national call to send statedelegates to the national convention, to accept persons as candidates who refuse to agree to abide by the party's ~requirement. (343U.S. 224) II

. . . ,I

. . .A state's or a politicalparty's exclusion of candidates from a party primary because they will not pledge to support the party's nominees Is a method of securing party candidates In the general election, pledged to the philosophy and leadership of that party. It Is an exercise of the state'sright to appoint electors in such manner, subject to possible constitutional llmltations, U.S. 227) as It may choose.

. . . (343
I,

. . . "We conclude that the Twelfth Amendment does not bar a politicalparty from requiring the pledge to support the nominees of the National Convention. Where a state authorizesa party to choose Its nominees for elector In a party primary and to fix the qualifications for the candidates,we see no federal constitutionalobjection to the requirement of this pledge. (343U.S. 231)

I, 1,

. . . Although theAlabama Supreme Courthad earlier ruled unconstitutionala state statute orovldina that the electors shall cast their ballot for the nominee o? theNational Convention of the party by which they were elected (Opinionof The

__ -..- whether the Justices, 34~So.2d 598 (1948));it is doubted~ Suoreme Court would so hold In view of Its 1952decision in Ray v. Blair, supra.

Other state cases supporting the constitutionality of the proposed legislationin questionhere are Thomas v. Cohen, 262N.Y.S. 320 (1933);Markham v. Bennlon, 25 P 2d %?953); Sprechels v. Graham, 194 Cal. 51o (1923). , 228P? 1040

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The Texas Constitution contains no provisionrelative to presidentialelectors and In our opinion, If the Legislature enacts Senate Bill No, 107 into law, it will be constitutional.
SUMMARY
Senate Bill No. 107 is not unconstitutional In providing for the election of presidential electors by congressionaldistricts as well as from the state at large,and In providing that such electorsmust cast their ballots in accordance with the pluralityvotewithin such: congressionaldistricts or the state at large, as the case may be.

Preparedby Jack Sparks AssistantAttorney General
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman George Kelton,Vice-Chairman Malcolm Quick Roy Mouer Robert Darden Sally Phillips
W. V. GEPPERT Staff Legal Assistant
HAWTHORNE PHILLIPS ExecutiveAssistant

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